Select Page

International Law
Temple University School of Law
Anderson, Mark F.

International Law Outline

THE INTERNATIONAL LEGAL PROCESS

I. The Concept of International Law
A. Definitional Considerations
B. IL in Historical and Contemporary Perspective
1. Historical Perspectives
a. General Factors
1) Spread of Roman Law through Europe
2) Revival of trade/commerce during Middle Ages
3) Formation of Leagues of Trading Towns for protection of trade and citizens engaged in trade
4) Development of Maritime Law made necessary by spread of international trade on the seas
5) Growing custom of States to send/receive permanent legations
6) Establishment of permanent standing armies
7) Renaissance and Reformation
8) Plans for maintaining International Peace
9) Discovery of America
10) American Revolution
b. David Bederman
1) Natural Law = something intrinsically part of humanity/society (especially human rights)
2) Positivism – states subject to no moral authority above them
a) Views
(1) IL is whatever states say it is
(2) Natural Law is all well and good but who gets to say what Natural Law is?
3) Rules:
a) Multipolarity good for development of IL
b) Anarchy or unipolarity bad for development of IL
c) Responsive to conflicts only, not preventative
4) Sovereignty à states are independent and autonomous; IL would not develop without independent states
a) Evolution: Unquestionable power of Monarch
(1) Claim of particular authority to a territory
(2) Power of state over citizens
(3) Sovereign equality (freedom of states with other states freely at international level)
(4) Popular sovereignty (power of people within State)
b) Limits: Globalization, neo-liberal economics, development of legal constructs like human rights, epidemics (i.e. AIDS)
c) “Disaggregated Sovereignty” à great control over own territory but all states face global issues *Current Status
c. Richard Falk
1) Successful areas of IL:
a) Management of Complexity à resilient capacity by sovereign states to contrive mutually beneficial ways of dealing with implications of interdependence
d. Problem areas of IL
1) Containment of Conflict within Tolerable Limits à Procedures for prohibiting aggressive uses of force
2) Promotion of Decency in the World:
a) Equity (Poverty/Mass Misery)
b) Development (Increased quality of Int’l Life)
3) Avoidance of Catastrophe à failed because no political will to achieve restraint
e. Some Success: promotion of decency à defining equity and encouraging development
2. Contemporary Perspectives
a. TWAIL I: Anghie & Chimni “Third World Approaches to IL…”
1) Generally: Focus is getting voice heard (embrace 3rd World)
a) Focus on sovereignty and non-intervention
b) Historically developed during emergence/anti-colonial forces of 3rd World
c) GOAL: Democratic formation of IL
2) Reasoning:
a) Indicted colonial IL for legitimizing the subjugation and oppression of the Third World peoples
b) Pre-colonial 3rd States were not strangers to idea of IL
c) Non-rejectionist stance towards IL à IL could take steps to incorporate needs/aspirations of newly independent states
d) Principles of sovereign equality of states and non-intervention
e) Political independence in itself insufficient to achieve liberation, since economic structures which linked 1st and 3rd World continued to disadvantage South (therefore needs reform)
b. TWAIL II: More critical of system (expands success of TWAIL I)
1) Critiques:
a) 3rd World State and global system as repressive à resort to violence and authoritarianism
(1) align with 3rd world people, not 3rd world states
b) IL inherently colonial à Colonial expansion developed “Universality” characteristics of IL
(1) Thus, Doctrine for assimilating non-euros into IL inevitably shaped by relationships of power and subordination inherent in colonialism
c) “Civilizing Mission” – characterization of non-euros as “others” who must be civilized creates crucial role for Race
(1) Justifies “humanitarian” violence for saving non-euros from themselves
(2) Northern Scholars and Northern Institutions set standards of unde

s politicas
b) Positivists:
(1) John Austin à no such thing as IL because no 3rd party “command” that is routinely enforceable
(2) Hart à set of rules w/o rules of recognition therefore not law
(3) Caveat: not lacking “primary rules of obligation” therefore Law in content, but not necessarily form
d. Koh – “Why Do Nations Obey IL?”
1) Rational Interests à obtain interests in wealth/power/etc
2) Kantian
a) Franck’s notion of Rule-Legitimacy
b) Causal Role of National Identity
3) Constructivists: identify formation and Int’l Society
4) Transnational Legal Process
a) Process:
(1) Interaction
(2) Interpretation
(3) Internalize
b) Evolutionary Process
c) Compliance Theory based on trans-national legal process
d) U.S. à IL part of OUR law i.e. recognizing treaties
II. Sources of International Law
A. Overview:
1. *Article 38 of Statute of Int’l Court of Justice*
a. Sources:
1) Int’l Convention Rules
2) Int’l Customs
3) General Principles of Law
4) Other
b. Primary Sources: Treaties, Custom, General Principles of Law
1) Formally equal, but not equal in effect
c. Secondary Sources: Judicial Decisions, Teachings of the Most Highly Qualified Publicists of the Various Nations
1) Judicial decisions strange since many countries don’t follow precedent
d. Not Included: General Assembly Resolutions
2. Article 21 of Rome Statute
a. Compared to Article 38
1) More specific, clearer about hierarchy of sources
a) Logical for a criminal court
2) Civil and Criminal Law compromised by drawing judges from both speres
3) Specific to ICC, Art. 38 still the Keystone
B. TREATIES